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Court applied incorrect burden of proof in denying return of property motion

Village of Greendale v. Matthew R. Derzay, 2019AP2294, District 1, 3/30/31 (not recommended for publication); case activity (including briefs)

The burden of proof for a petitioner under § 968.20 is preponderance of the evidence, but the circuit court applied the clear and convincing standard and demanded Derzay provide certain kinds of proof to meet that burden. This was error.

Derzay was arrested and criminally charged for a domestic violence incident. When he was arrested police seized a number of firearms. The charges were eventually dismissed, and Derzay moved under § 968.20 for the firearms to be returned. The police ran a firearms trace on the guns listed in the motion, but only three of the guns turned up on resulting report. The court allowed those three guns to be returned because, with the trace report Derzay had shown “by clear and convincing evidence” those guns were his. But it declined to return the other guns because it held Derzay needed to produce a bill of sale or similar documentary evidence to prove by clear and convincing evidence he owned the other guns. (¶3-6).

The court applied the wrong burden of proof:

¶9    Here, the circuit court required Derzay to produce a bill of sale or receipt to prove “by clear and convincing” evidence that Derzay owned the firearms that he requested be returned to his possession. In so doing, the circuit court applied the wrong burden of proof. …. [A] petition seeking the return of property under § 968.20 is a civil proceeding. [Jones v. State, 226 Wis. 2d 565,] 595[, 594 N.W.2d 738 (1999)]. Thus, “the appropriate burden of proof in this civil matter, as with other civil actions, is proof by the greater weight of the credible evidence.” Id. In other words, the applicable burden of proof for a proceeding under § 968.20 is one of a preponderance of the evidence, not clear and convincing evidence, and it was error to apply the more stringent burden of proof to Derzay’s petition.

¶10     In applying the clear and convincing evidence standard, the circuit court required Derzay to prove his ownership by producing a bill of sale or receipt and took no testimony from Derzay regarding his claimed right to possession of the firearms. Simply put, the plain language of Wis. Stat. § 968.20(1g) does not require Derzay to produce a bill of sale or receipt to prove his right to possession. “When interpreting a statute, this court’s goal is to discern the intent of the legislature, and to give it effect.” State v. Perez, 2001 WI 79, ¶13, 244 Wis. 2d 582, 628 N.W.2d 820. Thus, “[w]e decline to read into the statute words the legislature did not see fit to write.” Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316. While a bill of sale or receipt no doubt can be used to fulfill the requirement to show right to possession, it was an erroneous exercise of discretion for the circuit court to conclude that the statute required such evidence. See [State v.] Benhoff, 185 Wis. 2d [600,] 603[, 518 N.W.2d 307 (Ct. App. 1994)] (noting that the right to possession element was satisfied by testimony from the petitioner with “no evidence to the contrary”).

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